After presenting the history of citizenship in America and concluding from that history that America had always had a jus soli foundation for citizenship, the Court moved on to address the phrase “subject to the jurisdiction thereof” which has been the focus of so many of our modern debates on birthright citizenship. The Court began its consideration of this phrase with a look at an 1873 Supreme Court opinion known simply as The Slaughterhouse Cases.

The Wong Court focused on a statement made by Justice Miller in the Slaughterhouse opinion. At one point in that opinion, Justice Miller wrote:

“The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”

This single statement from the Slaughterhouse Court has been latched onto by opponents of birthright citizenship, and it has been quoted repeatedly throughout the modern debate on the meaning of the phrase “subject to the jurisdiction thereof.” The Wong Court, however, dismissed the value of this statement for several reasons that we should also consider.

First, the Court pointed out that the above quotation contradicts another statement made by Justice Miller just a few sentences later. In speaking of the distinction between citizens of the United States and the citizens of an individual state, Justice Miller pointed out that a man:

“must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.”

There appears to be a conflict between this statement and Justice Miller’s earlier claim. Here, he seems to be saying that anyone born within the United States is a citizen of the United States, but in the previous statement, he appears to be claiming that only those which are born to parents who are residing in the United States and who are not citizens of any other government are born as citizens of the United States. According to the Wong Court, the reason for this apparent contradiction was that Justice Miller’s first statement about the intent of the phrase “subject to the jurisdiction thereof

“was wholly aside from the question in judgment and from the course of reasoning bearing upon that question,” and thus “it was not formulated with the same care and exactness as if the case before the court had called for an exact definition of the phrase.”

The Court quoted Chief Justice Marshall as explaining that:

“It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”

To put it in simpler terms: Justice Miller only referenced the intent of the phrase “subject to the jurisdiction thereof” in passing and did not give it his full attention since that phrase was not the main focus of his opinion. Had he studied the phrase more carefully, he may have come to an entirely different conclusion. The Wong Court dismissed Justice Miller’s explanation of this phrase on the grounds that he did not give it the full consideration necessary to establish his explanation as a valid point of law. The Court pointed out that Justice Miller’s explanation “was unsupported by any argument, or by any reference to authorities,” and such support would have been necessary for Justice Miller’s statement to be adopted by future Courts.

But the Wong Court didn’t stop with that dismissal. They also demonstrated that none of the Justices of the Slaughterhouse Court itself accepted Justice Miller’s explanation as anything more than mere opinion. The Wong Court pointed out that all but one of the justices from the Slaughterhouse Court were still on the bench two years later when they gave unanimous consent to another ruling which briefly referenced the citizenship clause of the Fourteenth Amendment. In that later ruling of Minor vs. Happersett, the Court wrote:

“At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts.”

The Wong Court did not find it necessary to explain how this quotation demonstrates that none of the justices of the Slaughterhouse Court

“understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment.”

However, their reasoning is not difficult to follow.

If Justice Miller’s explanation that the phrase “subject to the jurisdiction thereof” was intended to exclude “the children of … citizens or subjects of foreign States born within the United States” was a valid explanation of the citizenship clause of the Fourteenth Amendment, then the justices of the Minor Court would not have said that the doubts about recognizing birthright citizenship for these children still needed to be solved. The fact that the Minor Court considered the question of birthright citizenship for the children of non-citizen parents to be unresolved proves that the justices of that Court did not accept Justice Miller’s previous explanation as a solution to that question. The Wong Court determined that, if the very same justices who gave us the Slaughterhouse opinion also declared that their Slaughterhouse opinion did not resolve the question of whether the children of non-citizen parents were entitled to birthright citizenship, then it would be foolish for any other Court to assume that this question had been resolved by the Slaughterhouse opinion.

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Bill Fortenberry is a Christian philosopher and historian in Birmingham, AL. Bill's work has been cited in several legal journals, and he has appeared as a guest on shows including The Dr. Gina Show, The Michael Hart Show, and Real Science Radio.

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